May 22, 2008

OB Sentinel EMC says Rules what Rules

You are driving down the your street, the speed limit is 35 mph. You are driving 35 mph. You get stopped by a guy from Raleigh for not driving safely. The guy from Raleigh gets paid because he gets people to send him money to promote safe driving. You go to traffic court and the judge says OK you were driving the speed limit I recommend not guilty. You go to Superior Court and judge says, I set the speed limit but now I don't think the speed limit really promotes safety - "Your drivers license is revoked."
Ok lets see if this sounds familiar. Somebody makes some rules. People start to play by the rules. An environmental group with no apparent standing sues after the rules have been set. After lots of lawyers get involved the rules seem to change and the permit gets denied. That seems to be what is happening to Wings over Waves, a controversial residential development on Hatteras Island. The developers were issued a permit by a state agency employing state trained and certified experts They reviewed a permit application and granted a permit. After a lengthy political battle the site plan was approved by the Dare County Board of Commissioners. OK, let me review. The mean, nasty developers have now convinced all the applicable state and local government agencies the control their fate, that their plan complies with all the applicable rules.
Let me digress for a minute. I believe that both the state and county governments develop rules fairly carefully, the rules balance what they see as the key public interests. The staffs and elected officials of these governments are caring, honest and generally pretty intelligent people. They try their best to do what they think is right and MOST OF THE TIME THEY GET IT RIGHT.
OK the permits are issued and development is about to begin. The developers have jumped through every hoop, met every request and paid their fees on time. By the way, it doesn't really matter to me but they probably have invested or borrowed some money. They either have interest to pay or have deffered interest income. As the clock ticks they lose money. It is a risky business and they knew that going in. They know they have to comply with the rules and they think they have done that, BUT...
Lets let the Outer Banks Sentinel pick up the story.
"The North Carolina Coastal Federation (NCCF), a non-profit conservation group, challenged the permit, arguing that DWQ violated state law by issuing the permit under conditions that would allow stormwater pollution and would harm the designated shellfishing uses of Pamlico Sound and Britt Creek.

State law requires protection of designated shellfishing waters from stormwater run-off that can carry bacteriological pollutants, like fecal coliform, and pose a threat to human health.

Administrative Law Judge Melissa Owens Lassiter heard the case and recommended that the Environmental Management Commission (EMC) uphold the permit.

But Peterson said that an EMC majority decided the state did not adequately address the issues raised in the case."
OK just so we have this right, let me recap. People apply for a permit, they meet the permit requirements as determined by the people whose job it is to issue the permit. They get the rest of their approvals. They want to start. An outside group sues to challenge their permit. A judge rules that the permit was issued properly yet the group that sets the rules doesn't uphold the decision of the person hired and trained to their standards to enforce rules despite the fact that the independent judge appointed to review the case said the permit wss issued properly.
The chairman of the Environmental Management Commision stated:that "DWQ didn't adequately defend the effectiveness of rules in protecting water quality," . Take a minute to reread that statement " The rules didn't do the job". That is what Peterson said. The state didn't make the case that the rules were effective.
I can accept a decision that finds some error in issuing a permit, bad or incomplete data, a rule that is misinterpreted, even a rule that trumps another rule (think Endangered Species Act) but not a rule that didn't do its job. If the Supreme Court says it is unconstitutional OK but when the EMC, a state agency decides the state's rules are not adequate to meet the state's interests then something is rotten in the State of Dare(mark)(or NC your choice).
I probably missed so key component. I don't think development projects should be designed to allow fecal contamination of shellfish waters, you don't either. But when we set standards and those standards are met then issue the permit and go back and change the rules for the next guy. The fact of the matter is that development at the margin - the new development - is not the big problem. The big impact is caused by old development that doesn't meet any standards and won't for a long time. The other big impact, especicially in water quality is state roads that collect pollution and discharge it when it rains. The people who make the rules also make the biggest problems.
Somehow I don't take much solice in the closing comments in the Sentinel piece:
Jan DeBlieu, NCCF coastkeeper, said the EMC decision validates the contention that current stormwater rules do not sufficiently protect water quality.

Revised stormwater rules are scheduled to go into effect Aug. 1, but legislation to annul the new rules is likely to come before the General Assembly before then.
Again lets restate that, the Jan says the by not approving a permit that apparently was legitimately issued, the EMC proved their governments rules don't do what they say they do. But the new rules that might do what the state thinks the old rules were supposed to do, may be overturned by the guys that made the old rules and have to approve the new rules. OK, somebody tell me what the guys in Waves are supposed to do? What rules should they comply with? What standards should they meet? Who should they ask for approval? The EMC doesn't issue permits, they make rules. The Coastal Federation doesn't issue permits, they solicit money and file suits. The state Division of Water Quality makes the rules that the EMC says don't work. The legislature sits back and creates the whole damn mess of rules, agencies and courts.
The people who invested in Wings over Waves took a risk, they probably lost. What message does that send to the next guy. What should they expect. It will take reinvestment to reduce pollution for older development, it will take reinvestment to maintain our lives here on the barrier island. If people can't invest and get a return then we won't improve. If people don't invest then we don't replace the failing with the better, we don't fix the existing problems. If people don't invest then values drop and we don't fix what fails, we allow problems to get bigger and worse.
Enough, I don't know if the rules that Wings over Waves complied with were appropriate. I don't know if they prevented pollution of shellfish waters. I don't know if they promoted traffic safety I do know that they were the rules as the people hired to enforce them understood them. I do know that they convinced both the issuing agency and a judge that they met the rules. I do know that if you don't have rules that people can understand and meet then they don't respect any rules, if people can't count on government to do what it says then they don't bother with government. I do know that without rules we don't have community and without community we don't have a chance in .... well you figure it out.
Sorry for taking so long. This article struck a nerve. I have been dragged in a situation close to me where rules were passed, investments made, and now somebody wants to change what the rules mean. NOT FAIR and really NOT SMART for the future of our communities.
Thanks for listening


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